Nanevski Developments Pty Limited v Rockdale City Council - [2010] NSWLEC 1369

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Nanevski Developments Pty Limited v Rockdale City Council [2010] NSWLEC 1369
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES: APPLICANT: Nanevski Developments
RESPONDENT: Rockdale City Council

FILE NUMBER(S): 10629 of 2010

CORAM: Murrell C

KEY ISSUES: :- Development application for aged care facility under State Policy.
SEPP 1 variations to height, storeys, and 25% single storey rear component
Adverse impacts on adjoining residential properties – privacy; solar access; bulk and height; traffic and parking; and impact on streetscape

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
Rockdale Local Environmental Plan 2000
Development Control Plan No. 40 – housing for older people or people with a disability

CASES CITED: Wehbe v Pittwater [2007] NSWLEC 827
Winten Property Group v North Sydney Council [2001] NSWLEC 46

TEXTS CITED: Building Code of Australia

DATES OF HEARING: 12 & 13 October, 3 & 6 December 2010

EX TEMPORE JUDGMENT DATE: 6 December 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr Tomasetti SC
SOLICITORS
Mr D Briggs
DG Briggs & Associates
RESPONDENT
Mr J Cole
SOLICITORS
HWL Ebsworth

JUDGMENT:

1 COMMISSIONER: This is an extempore judgment for a matter that I have heard over a period of time where an adjournment allowed for the hearing to continue on the basis of amended plans. The Court notes that the applicant is to pay the respondent’s costs for amended plans in terms of s 97B of the Environmental Planning and Assessment Act, 1979.

2 The applicant in these proceedings is seeking to erect a nursing home (aged care facility) at the property known as 45 Lawson Street, Sans Souci. The site is in close proximity to Fontainebleau Street and the subject site has an east-west orientation with the properties along the northern boundary having frontage to Fontainebleau Street. As such the rear boundaries of the properties numbered 4 through to 10 Fontainebleau Street abut the northern boundary of the subject site.

3 The irregular fan-shaped site has a rear boundary of around thirty-four metres, a frontage of about 29 metres, a northern boundary of fifty-four metres, southern boundary fifty-seven metres, yielding a total area of some 1,400 square metres. The site is generally flat with a slight fall towards the street of approximately 1.2 metres.

4 Currently on the subject land there is a single storey residential detached dwelling house with a garage and some mature vegetation in the rear, namely camphor laurel trees. To the south of the subject site there are two relatively recent constructed dual occupancies at 47 and 49 Lawson Street, and opposite the subject site at No. 2 is also a dual occupancy development.

5 The dual occupancy developments in the vicinity are of more recent time. The majority of Lawson Street consists mainly of single storey with some two-storey dwelling houses.

6 To the west of the subject site there are older style residential flat buildings, built in approximately the 60’s and 70’s and these have frontage to Rocky Point Road.

7 By way of background the Statement of Facts and Contentions provides details that are accepted. The contentions raised by the respondent in the statement are summarised as follows:

8 The amended plans include the following changes: the number of storeys of the development as it is now lowered some 200 mm into the ground; privacy issues along the north and south boundary; landscaping; and BCA compliance was also addressed during this time.

9 The council readvertised the matter and a bundle of documents with the objections was provided to the Court. The objections are largely similar to the objections to the original development application and the Court heard from a number of residents on site the first morning of the proceedings and a summary was provided to the Court.

10 In summary the residents are concerned about: the building being three storeys departing from the zoning requirements; the bulk and height of the proposal. The residents are of the opinion the proposal is a “monolithic structure” that would not be in character with the streetscape and the area generally.

11 They also expressed concern about the commercial operation of the aged care facility and the fact that, in their opinion, the infrastructure of the street configuration did not provide for appropriate access in terms of traffic and parking that is already at a premium in the street.

12 The Court also heard from residents in the street concerned about the parking for visitors and the lack of footpaths within the area and generally the location in the streetscape does not provide a suitable location for a nursing home facility in their opinion. In particular in terms of the design of the facility which they saw as being out of character with the area.

13 The Court inspected the properties that front Fontainebleau Street and went into each of the properties, 4, 6, 8 and 10 and also viewed the property to assess the visibility of the proposed development from the surrounding Fontainebleau Street and Lawson Street.

14 The amendments provide for a development which technically is a three storey development and the proposal is to provide for a rooftop deck which has a covered deck area and a storage facility, as well as the lift and stair access to the rooftop terrace that forms the third storey. The rooftop element will be seen from Lawson Street and from Fontainebleau Street.

15 The question of the fourth storey has been eliminated as the proposal has been lowered into the ground by some 200 mm. The basement parking does not protrude more than one metre above ground and therefore this does not constitute a storey. The basement level also contains facilities such as a loading bay, kitchen, laundry, cool room, staff meeting room, detention tank and garbage area. Lift access is provided to all levels including the basement and roof top terrace.

16 The Court had the opportunity of hearing expert evidence from a number of consultants, Mr Graham Scheffers, a BCA consultant, Mr Stan Manning an aged care consultant and Mr Kim Burrell, a consultant town planner provided evidence on behalf of the applicant.

17 The Court was also assisted by the evidence of Mr Greg Vickas, an architect planner and he also provided advice on the BCA requirements and aged care requirements.

18 At this point I will just digress for one moment to say that there was a great deal of discussion about the number of beds, or the density of the proposal in terms of the number of beds, and Mr Vickas urged upon the Court that it should have regard to the Commonwealth requirements in terms of the number of occupants per room. Mr Vickas is of the opinion that the Court should give weight to the Commonwealth requirements.

19 However, as submitted by the council’s solicitor, the requirements are not mandatory and they are taken from the residential care subsidy principles of 1997 wherein section 1.4 states that:

“Post the end of July 1999 building is taken to meet the privacy and space requirements if the building has:

(a) an average of no more than 1.5 residents per room and

20 Subclause 2 states that 1(a) and 1(b) do not apply to a room or rooms usually occupied by particular residents if the approved provider, is able to demonstrate it is appropriate having regard to the culture of the residents for those paragraphs not to apply.

21 The Council’s submission is that this is not a mandatory matter and the Court is not bound by these requirements. Also I note that there is some flexibility provided in the provision although Mr Stan Manning, the applicant’s own consultant, said that he was unaware of any aged care facility that does not operate with Commonwealth funding however this would be a matter for an applicant in terms of the design of a building if accreditation in terms of the national standards and building requirements is sought. As such my findings are made in the light of this information.

22 Mr Vickas in his statement of evidence, exhibit 3 and exhibit 13, makes the comment that he sees no reason why such a facility would be unsuitable for the site as the land is generally suitable for the purpose of a residential care facility and that there are “a number of strong location and demographic reasons why a nursing home is not only suitable, it also desirable to some extent”. However he considers that the density and the design of the proposal is one that is not compatible with the immediate surroundings of the site.

23 Mr Vickas however considers an alternative design scheme would be more appropriate and compatible and in keeping with the surrounding residential area. He says, “This is not to say that the erection of the proposed nursing home will somehow destroy the charm and urban cohesiveness of the immediate street, it will not because the street is simply not that good in terms of urban design qualities and attributes.” However, having said that, he said that the proposed design could be substantially amended to bring it more into conformity with the general pattern of development and character of the immediate area.

24 I will say at this point in my judgment I have considered his comments, in particular on the design of the proposal, however the Court must assess the plans that it has before it and that is the amended plans in exhibit J. It is generally not the role of the Court to assess an alternative design, however, an alternative design may be considered in the context of where the design of a development proposal creates unreasonable impacts or where an applicant decides to embrace the changes.

25 In my assessment of this application I must consider the statutory provisions and are these provided in council’s bundle. In particular State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004. This State Policy aims to encourage the provision of housing, including residential care facilities, that includes the subject residential aged care proposal “to increase the supply and diversity of residences that meet the needs of seniors or people with a disability, make efficient use of existing infrastructure and services and be of good design”.

26 The Policy states these aims will be achieved by:

(a) setting aside local planning controls that would prevent the development of housing for seniors or people with a disability;

27 There are a number of relevant definitions including floor space ratio; gross floor area; ground level; height; and landscaped area. Streetscape is also defined as meaning the character of a locality, whether it is a street or precinct defined by the spatial arrangement and visual appearance of built and landscape features when viewed from the street.

28 In calculating subcl (2) the number of storeys in a development for the purpose of this policy, a car park that does not extend above ground level by more than one metre is not counted as a storey and there is agreement in terms of the development application not exceeding 1 m out of ground basement.

29 It is also noted that this policy applies to land zoned primarily for urban purposes and therefore includes the subject site.

30 The State Policy on the relationship to other planning instruments, subcl 3 states “if this policy is inconsistent with any other EPI the policy prevails to the extent of the inconsistency”. For residential care facility there is also a definition in the SEPP.

31 The development for seniors housing, part 1, refers to a number of relevant matters and in particular I go to the design principles in cl 32:

“A consent authority must not consent to a development application unless the consent authority is satisfied the proposed development demonstrates adequate regard has been given to the principles set out in division 2.”

32 Division 2 provides for design principles, neighbourhood amenity and streetscape and the proposed development should recognise the desirable elements of the location’s current character, or in the case of precincts undergoing a transition then the desire to future character.

33 The other principles includes maintain reasonable neighbourhood amenity and appropriate residential character by providing for building setbacks to reduce bulk and overshadowing and adopting building heights at the street frontage compatible with scale of adjacent developments.

34 The design of the building is to have a front setback in sympathy but not necessarily the same as the existing building line, planting that is in sympathy with other planting in the streetscape and where possible retain major existing trees.

35 Visual and acoustic privacy requires appropriate site planning including the location design of windows and balconies, the use of screening devices and landscaping and ensuring acceptable noise levels.

36 Solar access and design for climate, it is to ensure adequate daylight to main living areas of neighbours in the vicinity and adequate sunlight to substantial areas of private open space.

37 Provisions on accessibility are contained in cl 38-- pedestrian links and safe environments. Development standards are set out in cl 40. That is: the minimum size of sites is to be 1,000 square metres; with twenty metre frontages, the subject site is some twenty-nine metres.

38 Clause 14 (a) and (b) contains the provision that “all buildings of the proposed development must be eight metres or less and a building that is adjacent to a boundary of a site must not be more than two storeys in height”. There is a note in that of the purpose of the height is to avoid an abrupt change in the scale of development in the streetscape.

39 Subcl (c) requires a building located in the rear twenty-five per cent must not exceed one storey in height.

40 There is also a note in terms of residential care facilities concerning relevant Commonwealth aged care accreditation standards and the Building Code of Australia.

41 Clause 48 of the SEPP lists matters that if the development complies with then these cannot be used to refuse development consent for residential care facilities and this includes:

(a) building height, if all proposed buildings are eight metres or less in height and regardless of any other standard specified in an EPI development to two storeys;

(c) If the development provides a minimum of twenty-five square metres of landscaped area per bed.

42 These requirements in clause 48 cannot be used to refuse the development as opposed to being requirements that the development must comply with.

43 The Court must have also regard to the council’s planning regime in terms of the Rockdale Local Environmental Plan. The LEP provides in the 2A(1) zone in which the subject site is located a maximum floor space ratio of 0.5:1, bearing in mind the provisions of the SEPP that where there is any inconsistency the provisions of the SEPP prevail.

44 The objectives of the 2A(1) zone include:

to identify land appropriate for medium and high density subject to flooding et cetera and to promote the scale and form of character of residential development compatible with the established character.

45 I note that development that is permissible in the subject zone includes hospitals as well as housing for older people or people with a disability and attached dual occupancy development and detached dual occupancy developments.

46 The council also has a development control plan known as DCP 40 effective from October 1998 and since that time the Seniors State Policy of 2004 was made. There was discussion about the weight that the Court should give this DCP. Despite the fact that it was made prior to the 2004 SEPP I have considered the matters contained within this DCP, although I note that it has not been readopted by the council and the planning provisions as at the time of its adoption are unknown in terms of the zoning and different elements contained within council’s planning regime.

47 The DCP provides guidance and it has provisions relating to height, with the objectives:

48 The DCP also contains provisions for building setbacks and developments up to two storeys in height and developments of three storeys in height. It also contains provisions for setbacks and side setbacks. It is noted that the side setback in the DCP is a minimum of three metres from the side boundaries and the subject proposal is three metres from the northern and southern boundaries.

49 I accept the council’s submission however that there is an incursion in this three metre setback area because of the louvre screens proposed for privacy, in particular to the southern boundary. In this regard the setbacks of the proposal is stepped on the northern boundary of the subject site such that the three metre setback at the ground floor is increased to some four and a half metres at the upper level, or the second floor, and five metres to the glass balustrading of the rooftop terrace and some seven and a half to eight metres for what is known as the storage and the lift elements on the third storey. The other State Policy that was also cited is SEPP 6, the number of storeys in a building in terms of definitions.

50 The Court must have regard to the fact that the proposed development does not comply in terms of the development standards and the development standards require a SEPP 1 objection. The Court has had regard to the principles and the authorities of Winten Property Group v North Sydney Council [2001] NSWLEC 46, a judgment of his Honour Lloyd J on the approach to SEPP 1 assessments and also to the Chief Judge of this Court in Wehbe v Pittwater [2007] NSWLEC 827. There is no argument between the parties that the standards under clause 48 require SEPP 1 objections to vary the height of 8 metres, the 2 storeys, and the rear single storey setback requirement.

51 Mr Burrell provided SEPP 1 objections to vary the standards. His SEPP 1 objections are in respect of the original plans to the Court the subject of the appeal. However, no issue is taken in respect of the applicant now relying on amended plans. The issue as to whether the SEPP 1 objections are well founded and justified in the circumstances of the case are still in contention.

52 The first SEPP 1 objection is in respect of the 8 metre height standard contained in clause 40(40(a). The proposed development is non compliant in terms of the roof top, that is the third storey elements of the stairwell for the upper level and for the lift and roof top deck area exceed the 8 metre standard. The SEPP contains aims and objectives and the purpose of the State Policy is to provide flexibility in the application of planning controls in circumstances where strict compliance would be unreasonable or unnecessary or tend to hinder the attainment of the objects of the Environmental Planning and Assessment Act. In addition the SEPP contains clauses and requirements that I must take into consideration for an assessment of an objection to vary the minimum standards.

53 There are no objectives relating to the eight metre height development standard in the SEPP, 2004. Mr Burrell looked at the guidelines under cl 31 of the SEPP which relate to infill self care housing. These are not the stated objectives but nonetheless they provide guidance and he sets out what he considers to be the underlying objectives of the standard. That is:

to minimise impacts on the privacy and amenity of existing neighbouring dwellings;

and to minimise overshadowing of existing dwellings and private open space;

to retain neighbour’s views and outlooks;

to reduce the apparent bulk of development and its impact on neighbouring properties; and

provide adequate building separation.

54 In terms of the assessment of the height exceedence, Mr Burrell states the non-compliance is for the roof top elements (the storage, lift and stair and terrace area). In his opinion the underlying objectives are still met or satisfied by the height exceedence of these elements.

55 The provision of the third storey element that provides a roof top open space area for the residents of the aged care facility must be assessed having regard to the underlying objectives. I am satisfied that privacy and amenity are not impacted by the elements above the 8m restriction and the roof terrace is setback from the edge of the building. I am also satisfied these elements do not increase overshadowing. The views and outlook I also agree with Mr Burrell are not affected by the height exceedence. I am satisfied that the bulk of the development by the third storey elements is satisfactory in and the underlying objectives/purposes of the standard are satisfied by the development. In terms of building separation, I am also satisfied that this meets the objectives of the standard.

56 As I stated, the standard itself does not contain overt objectives but nonetheless the underlying objectives outlined above, in my assessment, are met by the proposal and I also consider that the objects of the Act would be hindered if the variation to the 8 m height standard was not allowed.

57 In the circumstances of this case, which is what the State Policy directs us to, I am satisfied that the standard should be varied and that the SEPP 1 objection should be allowed.

58 In terms of the number of storeys, the proposal is inconsistent with the number of storeys as set out in cl 40 (4)(b). The proposal is for a three storey development and the standard is for a two storey development under the SEPP. The note to this standard states: “the purpose of the two storey maximum height control is to avoid an abrupt change in scale of the development in the streetscape”. In the circumstances of this case I am satisfied that this purpose is satisfied by the proposed development. That is not to say that the third storey element will not be seen from either Fontainebleau Street, between the single storey buildings that front Fontainebleau Street, and in Lawson Street but it will not be significant to create an abrupt change in the scale of the development in the streetscape. In my assessment the purpose of the 2 storey height standard is satisfied and the third storey element satisfies the SEPP in this regard and fulfils the aims and objectives of the State Policy as established in cl 3. In the circumstances of this case the variation should be allowed.

59 The third SEPP 1 objection is in respect of clause 40(4)(c) where the rear the twenty-five per cent of the site is limited to single storey. The council did not take issue of a variation to this standard during the proceedings. The variation is relatively minor, although that is not the test in terms of the SEPP 1 assessment. However, I accept the evidence of the experts that the purpose of this standard in the circumstances of this case with the juxtaposition with adjoining dwellings does not create adverse impacts in terms of bulk, privacy or amenity and the SEPP 1 objection should be allowed.

60 Mr Vickas is of the opinion that the proposed development is inappropriate to the streetscape. With the benefit of the site inspection and a detailed assessment of the plans that show the third storey I am satisfied that while the third storey elements will be visible in the streetscape this would not constitute an abrupt change to warrant refusal of the application.

61 In my assessment I do not rely on the photomontage nonetheless I have concluded that the building while it will read as an aged care facility it will not be incompatible in the streetscape that is undergoing change from the original single storey dwellings by more recent redevelopment of dual occupancies. Whilst this change might be slow I am also still satisfied that the proposed development is not out of character with the area as seen today. When I refer to “character”, one must have regard to the fact that this is a development application for an aged care facility and by its very nature, I accept the submission of the applicant that with a floor space ratio of 1:1, the proposal will be different in its appearance, it cannot be expected to mimic the residential development in the area which has an FSR for the zone of 0.5:1. Nonetheless the design of the proposal I am satisfied will sit comfortably within the streetscape even though it will not have the same presentation as a dwelling house, however this is not the test. The proposed development will present as a different form and use as that of an institution, but it is not of such a bulk that it is incompatible and will harmoniously coexist with the existing and future residential area in my assessment.

62 The proposed development since first considered by the Court has been amended. I am now satisfied that the privacy mechanisms for the proposal, while they will be observed from the adjoining properties to the north and to the south, I do not agree that they will provide for additional bulk that would warrant refusal of the development application.

63 The proposal provides for three metre setbacks, which is a guideline that has been generally incorporated into the plans from the council’s development control plan. I accept that while there is an incursion into this three metre setback area because of the privacy screens, nonetheless I am satisfied that the landscaping will ameliorate or punctuate the facades on the northern and southern elevations to soften the built form. I accept the proposed development on the northern boundary is some thirty-five metres in length, plus the decking at the rear of an additional four metres with the privacy screens, and that this is not the nature of a residence but nonetheless the length of the façade is to be filtered by vegetation within the setback area.

64 Furthermore, as I stated earlier, there is a setback to the upper level of the residential care unit in places where there are planter boxes provided. I do not agree with Mr Vickas that it will represent or present as a monolithic structure, the design provides for articulation and modulation, although I accept that there could be greater articulation but this is also not the test. The Court’s role is not to determine the optimum design of a development but rather whether the development in the plans before it are satisfactory.

65 I am satisfied that the presentation of the northern elevation to the dwellings with frontage to Fontainebleau Street, and southern elevation to the attached dual occupancy that is some twenty eight metres, is not unreasonable in the circumstances of this case. In my assessment I must also have regard to the objectives of the State Policy that is to increase the supply for senior’s living and make efficient use of existing infrastructure and services and the proposal satisfies this objective.

66 Mr Vickas is also concerned about the number of rooms that face south. However I am satisfied that the amenity is satisfactory having regard to the open space areas, the decks and the north facing lounge room areas within the development and this would not warrant refusal of the application in my overall assessment.

67 On the question of overshadowing the dual occupancy at No.47, immediately to the south, I am satisfied that the proposed development does not warrant refusal. This dual occupancy dwelling, will receive solar satisfactory solar access and I do not consider the proposed design requires an amendment to the plan to provide for solar access into a room along the northern façade. Given the orientation of the allotments in this part of the street the solar access to the east and west will more than comply with council’s requirements.

68 In terms of the houses along Fontainebleau Street, there will be a change to their environment, however, the question for the Court is whether the change is reasonable and I am satisfied on balance that the change is reasonable and the development it is also consistent with the SEPP for senior’s living. The design as amended allows for vegetation to punctuate the façade of the building in the setback areas and the privacy devices imposed maintain appropriate privacy to adjoining dwellings.

69 In my assessment I have considered the resident’s concerns. The parking for the proposal is compliant and I note that while Lawson Street is a residential street, I am satisfied that the infrastructure of the street in terms of its capacity, will cater for the proposed development. I also understand that people do not necessarily embrace change, at the same time I must have regard to the statutory planning framework in which I consider this development application and that includes the State Policy 2004 and where there is any inconsistency with council’s controls the provisions of the State Policy prevail.

70 The economic viability of the proposal is not a matter for the Court and I must assess the application on its merits under section 79C of the Act. At the same time I see no reason to require an amendment to the design such that there is compliance with the relevant Commonwealth legislation. I prefaced my findings to make it clear that this proposal may not meet the requirements of the Commonwealth building requirements, but that is a matter for the applicant. I must assess the building bulk, scale and height and its fit with the residential area- the final built outcome, and this has been the focus of my assessment in the context of the planning controls. I am satisfied the design of the proposed aged care facility is appropriate for the site.

71 The respondent’s conditions drafted to require changes, as shown in Mr Vicka’s alternative plans, are not embraced by the Court, as in my assessment the proposal as shown in the amended plans, exhibit J, is satisfactory.

72 The conditions are as generally agreed to between the parties. As agreed, conditions to be imposed are for size of the terrace on the upper level to be limited to 193 square metres because of BCA requirements and I also impose the condition (whilst it may be a belt and braces) is that fifty persons is the maximum number of persons on the upper deck at any one time. In my assessment, given the nature of the facility the use of the roof terrace is to be reduced to 8pm (as opposed to 10pm as shown in the conditions). A condition is also imposed for 1.8 m high non-reflective glass to be provided to the upper roof deck terrace of the development to replace the 1.8 m palisade railing.

73 Accordingly based on my assessment above, the formal orders of the Court in this matter are:

1. The appeal in respect of the property known as 45 Lawson Street, Sans Souci is upheld.

2. The objections made under State Environmental planning policy No.1 to vary the standards of: height; number of storeys; and the single storey component in the rear yard, are allowed.

3. The development application submitted to Rockdale City Council, and as amended and shown in exhibit J, is determined by the granting of consent subject to the conditions in Annexure ‘A’.

4. The exhibits except 3, 7, 13, 15, 17, D, J, L and M. are returned to the parties.

Environmental Planning and Assessment Act

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Annexure ‘A’

Conditions of Consent

NANEVSKI DEVELOPMENTS PTY LTD v ROCKDALE CITY COUNCIL

Property: 45 Lawson Street, SANS SOUCI NSW 2219

Lot 58 in Section 2 in DP 5031

Proposal: Demolition of existing dwelling to erect a new three (3) storey building with a basement car park for 12 vehicles for the proposed use as a Residential Care Facility consisting of 21 rooms for a maximum of 41 persons

The above development is approved subject to the following conditions:

GENERAL CONDITIONS

The following conditions restrict the work to the detail provided in the Development Application and are to ensure that the development is complete.

1. The term of this consent is limited to a period of five (5) years from the date of approval. The consent will lapse if the development does not commence within this time.

2. The development must be implemented substantially in accordance with the plans listed below,.

Architectural plans prepared by Urbanistica (Job No. 08/382) comprising Drawings:

Drawing no. Name Revision Date

DA 00 Proposed Area Calculations B 27.10.10

DA 01 Proposed Basement Floor Plan C 27.10.10

DA 02 Proposed Ground Floor Plan B 27.10.10

DA 03 Proposed Level 1 Floor Plan B 27.10.10

DA 04 Proposed Level 2 Floor Plan B 27.10.10

DA 05 Proposed Roof Plan B 27.10.10

DA 06 Proposed Elevations (East & North) B 27.10.10

DA 07 Proposed Elevations(West & South) B 27.10.10

DA 08 Proposed Sections(AA & BB & CC) B 27.10.10

Stormwater Drainage Plan prepared by Kozarovski & Partners Job No. 1212 Drawing No. C-1212-01 dated 28 May 2010 and Stormwater Concept Plan Certification dated May 2007

Landscape plans prepared by Zenith Landscape Designs Drawings 09-2171E :

Drawing no. Name Revision Date

1 of 5 Existing Tree Plan E E:25.10.10

2 of 5 Landscape Layout & Surfaces - Ground Floor E E:25.10.10

3 of 5 Planting Plan - Ground Floor E E:25.10.10

4 of 5 Landscape Plan - First Floor E E:25.10.10

5 of 5 Landscape Plan - Rooftop E E:25.10.10

3. All new building work must be carried out in accordance with the provisions of the Building Code of Australia (BCA).

4. A Construction Certificate must be obtained from Council or an Accredited Certifier prior to any building work commencing.

AMENDMENTS TO THE APPROVED PLANS

5. The safety barrier located upon the outside edge of the planter on the northern and southern elevation of the first floor balcony adjoining the communal lounge area is upgraded so that it has at least a 50% density.

(a) The height of the privacy screens outside Bedrooms 2, 3, 4, 5 and 6 is increased to 1600 mm in height relative to the ground floor level.

(b) The proposed privacy screens to Bedrooms 19 and 20 are to be installed to the same specification as those privacy screens to be provided to the northern elevation at Level 1.
(c) The proposed 1800 mm high glazed safety barriers around the perimeter of upper level external recreation areas and balconies are to be non reflective glazing and to the following specifications:

(i) They are adequately offset from adjacent planters so as to ensure no foothold can be obtained on the planter box behind;
(ii) No horizontal elements or members which might provide a foothold; and
(iii) Designed to the general balustrade standards of the BCA in terms of not offering footholds.

6. The pergola, balcony and terrace areas shall not be enclosed at any future time without Council approval.

7. This approval is not to be construed as permission to erect any structure on or near a boundary contrary to the provisions of the Dividing Fences Act.

Excavation, filling of the site (with the exception of the area immediately under the building envelope), or construction of retaining walls are not permitted unless shown on the approved plans and authorised by a subsequent construction certificate.

9. Mail boxes must be installed along the street frontage of the property boundary in accordance with Australia Post Guidelines. Prominent house numbers are to be displayed, with a minimum number size of 150 mm in height for each number and letter in the alphabet.

10. A minimum 1.2m wide concrete footpath is required to be designed and installed in Lawson Street, across the full frontage of the site and between the site and Fontainebleau Street, to achieve an accessible pathway is accordance with the site related requirements of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004. The design and installation of the pathway is subject to the requirements of Council as administered in accordance with the Roads Act 1993.

DEVELOPMENT SPECIFIC CONDITIONS
THE FOLLOWING CONDITIONS ARE SPECIFIC TO THE DEVELOPMENT APPLICATION PROPOSAL:

11. All loading, unloading and transfer of goods to and from the loading bay and premises shall take place wholly within the property.

12. Loading areas are to be used only for the loading and unloading of goods, materials etc. not for any other purpose.

13. Loading and unloading within the site shall be restricted to commercial vehicles not exceeding the size and mass description of the Small Rigid Vehicle (SRV) from AS2890.2:2002. Commercial vehicles greater in size and mass than the Small Rigid Vehicle are not permitted to enter the site.

14. The existing and future owners (Registered Proprietor) of the property will be responsible for the operation and maintenance of the retention system. The registered proprietor will:

i) permit stormwater to be retained by the system;
ii) keep the system clean and free of silt, rubbish and debris;
iii) maintain, renew and repair the whole or parts of the system so that it functions in a safe and efficient manner, and in doing so complete the same within the time and in the manner specified in written notice issued by the Council;
iv) carry out the matters referred to in paragraphs (ii) and (iii) at the proprietor’s expense;
v) not make any alterations to the system or elements thereof without prior consent in writing of the Council;
vi) permit the Council or its authorised agents from time to time upon giving reasonable notice (but at any time and without notice in the case of emergency) to enter and inspect the land for compliance with the requirements of this clause;
vii) comply with the terms of any written notice issued by the Council in respect to the requirements of this clause within the time stated in the notice.

15. The rainwater tank shall be routinely de-sludged and all contents from the de-sludging process disposed – solids to the waste disposal and de-sludged liquid to the sewer.

16. The use of the premises, building services, equipment, machinery and, ancillary fittings shall not give rise to an "offensive noise" as defined under the provisions of the Protection of the Environment Operations Act, 1997.

17. The use of mechanical plant including air conditioners, fans, compressors, condensers, freezers, swimming pool or spa pumps (whether commercial or domestic) shall not cause sound pressure levels in excess of the criteria given in the NSW Industrial Noise Policy - 2000.

18. Residential air conditioners shall not cause ‘offensive noise’ as defined by the Protection of the Environment Operations Act 1997 or contravene provisions of the Protection of the Environment (Noise Control) Regulation 2008 where emitted noise from a residential air conditioner can be heard within a habitable room in any other residential premises at night.

19. The operation and maintenance of the kitchen and laundry shall not give rise to the emission of offensive odours in contravention of the Protection of the Environment Operations Act 1997.

20. The development shall be consistent with the General Terms of Approval (GTAs) and Licence issued by letter dated 8 July 2008 by the then NSW Department of Water and Energy under the Water Act 1912.

21. Deliveries to the site shall be restricted to between 7.30 am and 5.30 pm daily.

22. Any side and rear fences shall be installed to a minimum height of 1.8m from natural ground level, except for the area in front of the building line.

23. The maximum capacity of the facility shall not exceed 41 beds.

24. With the exception of those periods during shift changes, the maximum number of persons working on the premises at any one time shall be limited to thirteen (13) staff members.

25. The facility shall only be used as a Residential Care Facility as defined in State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004. No alternate use of the building is permitted without the prior consent of the Council.

26. A restriction as to user under section 88E of the Conveyancing Act 1919, shall be registered with the NSW Department of Land and Property Information, limiting the use of the building to ‘seniors housing’ as defined in State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004. This provision shall be in place prior to the issue of the Final Occupation Certificate.

27. The roof top terrace shall not be used between the hours of 10.00 pm and 7.00 am (the following day).

(a) The use of the roof top terrace area is to be limited to no more than 50 occupants at any time unless a Fire Engineered Alternative Solution is approved with a Construction Certificate in accordance with the relevant Performance Requirements of the Building Code of Australia. The limitation of persons using the roof top terrace is to be supported by;

Signage prominently displayed adjacent to the lift and fire-isolated stair, and

Management-in-Use Procedures must be implemented to ensure the limitations on number of occupants is not exceeded at any time and a senior staff member confirms on a regular basis (at least every 3 months) the practice has been maintained, and

The limitations on the use of the roof top terrace is to be Included in the Fire Safety Schedule for the building to be certified annually.”

28. Permanent or semi-permanent pumping of groundwater to protect the building will not be allowed.

29. All external glazing shall have a maximum reflectivity of 20%.

30. The off-street car parking areas associated with the subject development shall be designed strictly in accordance with AS2890.1:2004, except as varied by the Council’s Parking and Loading Code as follows:

The minimum car space width shall be 2.5m and the minimum car space length shall be 5.5m.
The maximum ramp and driveway gradient shall be 1 in 5 (20%).

A traffic management system shall be designed and installed for the basement ramp to provide for priority one-way access on the 3.5m wide ramp that provides for access in both directions. The system is to be able to detect the location of vehicles and designate priority to vehicles entering the basement from Lawson Street using a traffic light system.

The off-street parking areas for commercial vehicles shall be designed strictly in accordance with AS2890.2:2002 for the Small Rigid Vehicle (SRV). The basement car park area shall be designed to allow for the swept path of the SRV as defined by AS2890.2:2002, in addition to the requirement to comply with the B99 swept path from AS2890.1:2004.

The design of the driveway longsection shall comply with DCP 40 and the flood protection requirements of Council’s Flood Advice Letter. A minimum 3.5 metre height clearance shall be provided in all areas where the SRV manoeuvres into and out of the loading bay.

A sign is to be installed at/over the entrance to the basement identifying the maximum height clearance of the ramp.

31. All existing and proposed lights shall comply with the Australian Standard AS4282 - 1997 "Control of the Obtrusive Effects of Outdoor Lighting". In this regard, the lighting of the premises shall be directed so as not to cause nuisance to the owners or occupiers of adjacent/adjoining premises or to motorists on adjoining or nearby roads.

32. All vertical plumbing, other than roofwater heads and downpipes, shall be concealed within the brickwork of the building.

33. External paths and ground surface adjoining the walls of the building shall be graded and drained away from the dwelling in such a manner as to not cause a nuisance to adjoining properties.

34. The species selection and location of planting shall maximise winter solar access and summer shade to dwellings.

35. Screening species shall be included into the side setbacks to improve privacy between adjacent dwellings.

36. Podium landscaping and paved areas shall be drained into the stormwater drainage system. All waterproofing for planters on slab shall be installed and certified by a licensed waterproofing contractor.

37. Retaining walls over 600mm in height shall be designed and specified by a suitably qualified structural engineer.

38. Should a thermostatic mixing valve be installed in the premises, the following requirements shall be met:

i) The thermostatic mixing valves shall be set at a predetermined temperature of no lower than 37 ºC and no higher than 43 ºC. The “fail safe” mixing valves shall be installed.

ii) A copy of the commissioning report for the thermostatic mixing valve shall be submitted to Council with an additional copy kept on the premises. The thermostatic mixing valves are to be serviced annually by a suitably qualified and registered plumber who has completed a TAFE course in mixing valves.
iii) The thermostatic mixing valve shall be registered with Council as a warm water system, by completing the attached registration form, in accordance with the provisions of the NSW Public Health Act, 1991 and the Public Health (Microbial Control) Regulation 2000 for the control and prevention of Legionnaires Disease

39. The proposed development shall be designed, constructed and operated in compliance with the requirements of the Food Act 2003, Food Regulations 2004 and the Australian Standard AS 4674 – 2004 “Design, Construction and Fit out of Food Premises”

40. The hair salon shall comply with the requirements of the Local Government Act 1993, the Regulations there under, the Public Health Act, 1991, as amended and the Regulations there under.

PRIOR TO ISSUE OF THE CONSTRUCTION CERTIFICATE

THE FOLLOWING CONDITIONS MUST BE COMPLETED PRIOR TO THE ISSUE OF THE CONSTRUCTION CERTIFICATE.

41. A Footpath Reserve Restoration Deposit of $6,406.40 shall be paid to Council prior to the issue of a construction certificate. This is to cover repair of any damages, or other works to be done by Council. This includes construction, removal, or repair as required to: kerb and guttering, existing or new driveways; paved areas and concrete footpaths. The deposit may be lodged with Council in the form of a Bank Guarantee (Any proposed Bank Guarantee must not have an expiry date). If payment is made after the end of the financial year, the amount shall be adjusted in accordance with Council's adopted fees and charges. The deposit will not be returned by Council until works are completed and all damage is restored and all specified works are completed by Council.

42. A footpath inspection fee of $137.50 shall be paid to Council with lodgement of the Construction Certificate with Council, or by the PCA when submitting the copy to Council.

43. A fee is payable to Council for a Soil and Water Management Sign (811) of $14.50. If payment is made after the end of the financial year, the amount shall be adjusted in accordance with Council’s adopted fees and charges.

44. An environmental enforcement fee of 0.25% of the cost of the works shall be paid to Council prior to the issue of a construction certificate in accordance with Rockdale Council's City Plan (adopted fees and charges).

45. For work costing $25,000 or more, a Long Service Leave Levy shall be paid. For further information please contact the Long Service Payments Corporation on their Helpline 13 1441.

46. An application for Boundary levels shall be made to Council’s Customer Service Centre prior to issue of the Construction Certificate. All boundary works, egress paths, driveways and fences shall comply with this level. A fee of $217.00 is payable to Council for the determination of boundary levels. If payment is made after the end of the financial year, the amount shall be adjusted in accordance with Council's adopted fees and charges.

47.a. Pursuant to section 94A of the Environmental Planning and Assessment Act 1979 and Rockdale Section 94A Development Contributions Plan 2008, a report is to be submitted to Council, prior to approval of the first Part 4A certificate required for the development, identifying the proposed cost of carrying out the development, as follows:

(i) Where the proposed cost of carrying out the development is less than $1,000,000, a cost summary report prepared and certified by a building industry professional, or

(ii) Where the proposed cost of carrying out the development is $1,000,000 or more, a detailed cost report prepared and certified by a quantity surveyor registered with the Australian Institute of Quantity Surveyors or a person who can demonstrate equivalent qualifications.

This report is to be prepared in the form specified in Rockdale Section 94A Development Contributions Plan 2008 and the costs must be determined in accordance with clause 25J of the Environmental Planning and Assessment Regulation 2000.

Note:

1. Council may review the costs contained in the report and may seek the services of an independent person to verify them. In such a case, all costs associated with obtaining this advice will be at the expense of the applicant and no Part 4A certificate is to be issued until such time as these costs have been paid.

This levy is to be paid prior to the issue of the first Part 4A certificate required for the development.

If the levy is not paid within the same financial year as the date on which Council accepted the cost summary report, the registered surveyor’s detailed cost report or the independent review of costs (as the case may be), the amount of the levy is to be adjusted at the time of actual payment to reflect changes in construction costs, in accordance with the provisions of Rockdale Section 94A Development Contributions Plan 2008.

Note: This requirement to pay the section 94A levy does not apply if the proposed cost of carrying out the development is $100,000 or less or Council has confirmed in writing that the proposed development is exempt from the levy.

48. A Licence under Part V of the Water Act 1912 shall be obtained from the Office of Water. Please contact the Office’s Water Licensing Unit on (02) 9895 6211 for details.

49. The technical documentation required by the General Terms of Approval (GTAs) issued by the then Department of Water and Energy shall be provided to the Office of Water with the application for a Water Licence. Please contact Council or the Office of Water for a copy of the GTAs.

50. If Council is appointed as the Principal Certifying Authority (PCA) then structural engineer's details shall be submitted prior to the issue of the Construction Certificate; such structural drawings shall be certified by the Structural Engineer that the design complies with the relevant S.A.A. Codes for the following:

the footings of the proposed structure;
the footings of the slab-on-ground (having due regard to the possible differential settlement of the cut and fill areas);
all reinforced concrete floor slabs;
all reinforced concrete stairs;
the piers to natural ground or rock, detailing the size and position of the piers;
the proposed retaining wall;
the work required to stabilise the excavation;
the work required to stabilise the footpath area;
the design of each roof truss type showing the layout of each truss on a marking plan and the method of connecting each truss to its supporting members of the method of bracing;
all structural steel work;
first floor joists;
fire rated ceilings/fire protective ceilings.

51. In the case of residential building work for which the Home Building Act 1989 requires there to be a contract of insurance or owner builder’s permit in force in accordance with Part 6 of that Act, that such a contract or permit is in place.

52. All building materials shall be flood resistant, or flood compatible to a height of 500mm above the 1% AEP flood, or flow level. All internal electrical switches, power points or similar utilities liable to flood damage shall be set at a minimum of 500mm above the 1% AEP flood, or flow level. Details shall be provided and approved prior to the issue of a construction certificate.

53. A suitable qualified engineer is to certify that the structure can withstand the forces of floodwater, scour, debris and buoyancy in a 1% AEP flood event and a PMF event.

54. To ensure the development is compatible with the surrounding environment, colours and finishes of the roof and walls are to be submitted to Council prior to the issue of the Construction Certificate. Council will advise you on the suitability of the selected samples.

55.

Note: Compliance with Council's Development Control Plan (DCP) 28 - Requirements for Access and the Building Code of Australia does not necessarily guarantee that the development meets the full requirements of the Disability Discrimination Act (DDA) 1992. It is the responsibility of the applicant to make the necessary enquiries to ensure that all aspects of the DDA legislation are met.

56. The applicant shall confer with Energy Australia to determine if installation of electricity conduits in the footway is required. Written confirmation of Energy Australia’s requirements shall be obtained prior to issue Construction Certificate.

57. The approved plans must be submitted to a Sydney Water Quick Check agent or Customer Centre to determine whether the development will affect Sydney Water’s sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. Plans will be appropriately stamped. For Quick Check agent details please contact Sydney Water.

The consent authority or a private accredited certifier must ensure that a Quick Check agent/Sydney Water has appropriately stamped the plans before issue of any Construction Certificate.

58. A dilapidation survey shall be undertaken of all properties and/or Council infrastructure, including but not limited to all footpaths, kerb and gutter, stormwater inlet pits, and road carriageway pavements, in the vicinity which could be potentially affected by the construction of this development. Any damage caused to other properties during construction shall be rectified. A copy of the dilapidation survey and an insurance policy that covers the cost of any rectification works shall be submitted to the Accredited Certifier (AC) prior to issue of the Construction Certificate. The insurance cover shall be a minimum of $10 million.

59. Prior to issue of the Construction Certificate, a longitudinal driveway profile shall be submitted to Council or an Accredited Certifier for assessment and approval. The profile shall start in the centre of the road and be along the critical edge (worst case) of the driveway. Gradients and transitions shall be in accordance with Council's Code. The profile shall be drawn to a scale of 1 to 20 and shall include all relevant levels, grades (%) and lengths.

60. An addendum to the Accessibility Report prepared by Mark Relf dated 17 June 2010 confirming that the plans listed under condition 2 of this consent comply with the access requirements of the Building Code of Australia and relevant standards shall be submitted to the PCA prior to the issue of the Construction Certificate.

61. The subsurface structure shall be designed with a waterproof retention system (ie tanking and waterproofing) with adequate provision for future fluctuation of the water table. The subsurface structure is required to be designed with consideration of uplift due to water pressure and “flotation” (buoyancy) effects. Subsoil drainage around the subsurface structure must allow free movement of groundwater around the structure, but must not be connected to the internal drainage system. The design of subsurface structure, tanking and waterproofing, and subsoil drainage shall be undertaken by a suitably experienced Chartered Professional Engineer(s). Design details and construction specifications shall be included in the documentation accompanying the Construction Certificate.

62. A copy of Permission to Discharge Trade Waste Water shall be obtained from Sydney Water prior to the discharge of trade waste water to the sewer system. A copy shall be provided to Principal Certifying Authority (PCA) prior to issuing the Construction Certificate. A copy shall also be provided to Council if Council is not the PCA.

63. The air conditioning and Mechanical Ventilation system shall comply with the requirements of the Building Code of Australia, and applicable standards AS1668.1-1998 The Use of Ventilation and Air-conditioning in Buildings Part 1: Fire and Smoke Control in Multi-compartment Buildings, and AS 1668.2 - 2002: The Use of Ventilation and Air-conditioning in Buildings Part 2: Ventilation Design for Indoor Air Contaminant Control.

The system shall be certified by a suitably qualified and experienced mechanical engineer prior to the issue of a Construction Certificate. A copy of the certificate shall be provided to the Principal Certifying Authority (PCA). A copy shall also be provided to Council if Council is not the PCA.

64. The mechanical exhaust ventilation system shall be installed in the kitchen and food preparation areas where cooking and heat producing processes are conducted. All equipment producing heat or steam shall be placed wholly under the ventilation canopy. The ventilation system shall be designed and installed by an appropriate qualified person in accordance with Australian Standards AS1668.1-1998 & 1668.2 -2002.

65. Stormwater management requirements for the development site, including the final discharge/end connection point, must comply with DCP 78 – Stormwater Management.

66. Prior to the issue of the Construction Certificate, detailed drainage design plans for the management of stormwater are to be submitted to Council or an Accredited Certifier for assessment and approval. Design certification, in the form specified in DCP 78, and drainage design calculations are to be submitted with the plans. Council’s DCP 78 sets out the minimum documentation requirements for detailed design plans.

PRIOR TO COMMENCEMENT OF WORKS

The following conditions must be completed prior to the commencement of works:

67. Council's warning sign for soil and water management must be displayed on the most prominent point on the building site, visible to both the street and site workers. The sign shall be erected prior to commencement of works and shall be displayed throughout construction.

68. Soil and sedimentation controls are to be put in place prior to commencement of any work on site. The controls are to be maintained in effective working order during construction.

The controls are to be designed and installed in accordance with the Soil and Water Management for Urban Development Guidelines produced by the Southern Sydney Regional Organisation of Council. Copies of the guidelines are available from Council.

69. A Soil and Water Management Plan shall be prepared in accordance with Soil and Water Management for Urban Development Guidelines produced by the Southern Sydney Region Organisation of Councils. A copy of the plan must be submitted to Council. The Plan must include details of the proposed erosion and sediment controls to be installed on the building site. A copy of the Soil and Water Management Plan must be kept on-site at all times and made available on request.

Sediment control devices shall not be located beneath the driplines of trees, which are to be retained.

70. A sign must be erected at the front boundary of the property clearly indicating the Development Approval Number, description of work, builder's name, licence number and house number before commencement of work. If owner/builder, the Owner/Builder Permit Number must be displayed.

71. A sign must be erected in a prominent position on any work site on which work involved in the erection or demolition of a building is being carried out:

stating that unauthorised entry to the work site is prohibited, and
showing the name of the person in charge of the work site and a telephone number at which that person may be contacted outside working hours.
Any such sign is to be removed when the work has been completed.
This condition does not apply to:
building work carried out inside an existing building or
building work carried out on premises that are to be occupied continuously (both during and outside working hours) while the work is being carried out.

72. Following any transplanting of the existing palm trees on site, Tree Protection Zones shall be established in accordance with AS 4970-2009 (Protection of Trees on Development Sites) with protective fences erected at least two (2) metres from the trunks, around each of the palms and the Callistemon street tree. The protective fences shall consist of chain wire mesh temporary fence panels securely braced to prevent movement, shall be in place prior to the commencement of any demolition work on site and shall remain until the completion of all building and hard landscape construction. Excavations for services, waste bins, storage of materials and equipment, site residue, site sheds, vehicle access or cleaning of tools and equipment are not permitted within the Tree Protection Zones at any time.

73. Prior to the commencement of any work on site, a sign shall be placed in a prominent position on each protective fence identifying the area as a Tree Protection Zone and prohibiting vehicle access, waste bins, storage of materials and equipment, site residue and excavations within the fenced off area.

74. The site shall be secured by a 1500 mm (minimum) high temporary fence for the duration of the work. Gates shall be provided at the opening points.

75. Toilet facilities are to be provided, at or in the vicinity of the work site, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site and the toilet facilities must be designed and installed in accordance with the provisions of clause 781 of the Environmental Planning and Assessment Regulation 1994, and be installed before any other work is commenced.

76. A Construction Management Plan shall be prepared in accordance the requirements of all relevant regulatory approval bodies. The Waste Management Plan shall address (but not limited to) the following:

Prior to the commencement of works the Certifying Authority shall be satisfied that the Construction Management Plan has obtained all relevant regulatory approvals.

DURING DEMOLITION/EXCAVATION/CONSTRUCTION
THE FOLLOWING CONDITIONS MUST BE COMPLIED WITH DURING DEMOLITION, EXCAVATION AND OR CONSTRUCTION.

77. A copy of the Construction Certificate and the approved plans and specifications must be kept on the site at all times and be available to Council officers upon request.

78. Hours of construction shall be confined to between 7 am and 6.30 pm Mondays to Fridays, inclusive, and between 8 am and 3.30 pm Saturdays with no work being carried out on Sundays and all public holidays.

79. Upon inspection of each stage of construction, the Principal Certifying Authority (or other suitably qualified person on behalf of the Principal Certifying Authority) is also required to ensure that adequate provisions are made for the following measures (as applicable), to ensure compliance with the terms of Council's approval:

Sediment control measures
Provision of perimeter fences or hoardings for public safety and restricted access to building sites.
Maintenance of the public place free from unauthorised materials, waste containers or other obstructions.

80. Demolition operations shall not be conducted on the roadway or public footway or any other locations, which could lead to the discharge of materials into the stormwater drainage system.

81. All waste generated on site shall be disposed of in accordance with the submitted Waste Management Plan.

82. A Registered Surveyor’s check survey certificate or compliance certificate shall be forwarded to the certifying authority detailing compliance with Council's approval at the following stage/s of construction:

i) After excavation work for the footings, but prior to pouring of concrete, showing the area of the land, building and boundary setbacks.

ii) Prior to construction of each floor level showing the area of the land, building and boundary setbacks and verifying that the building is being constructed at the approved level.
iii) Prior to fixing of roof cladding verifying the eave, gutter setback is not less than that approved and that the building has been constructed at the approved levels.

iv) On completion of the building showing the area of the land, the position of the building and boundary setbacks and verifying that the building has been constructed at the approved levels.

83. All excavation and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards and guarded and protected to prevent them from being dangerous to life or property.

84. When excavation associated with the erection or demolition of a building extends below the level of the base of the footings of a building or an adjoining allotment of land, you shall.

preserve and protect the building from damage and
underpin and support the building in an approved manner, if necessary and
give notice of intention to excavate below the level of the base of the footings of a building on an adjoining allotment of land to the owner at least 7 days prior to excavation and furnish particulars of the excavation to the owner of the building being erected or demolished.

Note: The owner of the adjoining allotment of land is not liable for any part of the cost of work carried out for the purposes of this clause, whether carried out on the allotment of land being excavated or on the adjoining allotment of land.

In this conditions allotment of land includes a public road and any other public place.

85. When soil conditions require it:

retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil shall be provided, and
adequate provision shall be made for drainage.

86. Any new information discovered during remediation, demolition or construction works which has the potential to alter previous conclusions about site contamination, shall be notified to Council being the Regulatory Authority for the management of contaminated land.

87. Works shall not encroach onto or over adjoining properties, including retaining walls, fill material or other similar works. Soil shall not be lost from adjoining sites due to construction techniques employed on the subject site.

88. All contractors shall comply with the following during all stages of demolition and construction:

A Waste Container on Public Road Reserve Permit must be obtained prior to the placement of any waste container or skip bin in the road reserve (i.e. road or footpath or nature strip). Where a waste container or skip bin is placed in the road reserve without first obtaining a permit, the Council’s fees and penalties will be deducted from the Footpath Reserve Restoration Deposit. Permits can be obtained from Council’s Customer Service Centre.

A Road Opening Permit must be obtained prior to any excavation in the road reserve (i.e. road or footpath or nature strip). Where excavation is carried out on the road reserve without first obtaining a permit, the Council’s fees and penalties will be deducted from the Footpath Reserve Restoration Deposit. Permits can be obtained from Council’s Customer Service Centre.

A Hoarding Permit must be obtained prior to the erection of any hoarding (Class A or Class B) in the road reserve (i.e. road or footpath or nature strip). Where a hoarding is erected in the road reserve without first obtaining a permit, the Council’s fees and penalties will be deducted from the Footpath Reserve Restoration Deposit. Permits can be obtained from Council’s Customer Service Centre.

A Crane Permit must be obtained from Council prior to the operation of any activity involving the swinging or hoisting of goods across or over any part of a public road by means of a lift, hoist or tackle projecting over the footway. Permits can be obtained from Council’s Customer Service Centre.

A Permit to Dewater or Pump Out a site must be obtained prior to the discharge of pumped water into the road reserve, which includes Council stormwater pits and the kerb and gutter. Permits can be obtained from Council’s Customer Service Centre.

89. The existing dwelling/structure shall be demolished and removed from the site prior to works commencing. All demolition work shall be carried out in accordance with Council's Demolition and Erection of Buildings Code, with AS2601 – 2001: The Demolition of Structures and with the requirements of the WorkCover Authority of NSW.

90. The new building work shall be protected in accordance with the provisions of AS 3660.1-2000 "Termite Management - Part 1: New Building Work", as required by Part 3.1.3 of the Building Code of Australia. Certification is required to be submitted to the Principal Certifying Authority (PCA), prior to the next stage of works to ensure that the selected method of treatment is in compliance with the relevant provisions of the standard. Such certification is to be prepared by a suitably qualified person.

91. Stockpiles are not permitted to be stored on Council property (including nature strip) unless prior approval has been granted. In addition stockpiles of topsoil, sand, aggregate, soil or other material shall be stored clear of any drainage line or easement, natural watercourse, kerb or road surface.

92. Building and demolition operations such as brickcutting, washing tools or paint brushes, and mixing mortar shall not be performed on the roadway or public footway or any other locations which could lead to the discharge of materials into the stormwater drainage system.

93. All disturbed areas shall be stabilised against erosion within 14 days of completion, and prior to removal of sediment controls.

94. Stormwater from roof areas shall be linked via a temporary downpipe to an approved stormwater disposal system immediately after completion of the roof area.

95. Building, demolition and construction works not to cause stormwater pollution and being carried out in accordance with Section 2.8 of Council's Stormwater Pollution Control Code 1993. Pollutants such as concrete slurry, clay and soil shall not be washed from vehicles onto roadways, footways or into the stormwater system. Drains, gutters, roadways and access ways shall be maintained free of sediment. Where required, gutters and roadways shall be swept regularly to maintain them free from sediment.

Note: The Applicant may be liable to prosecution under the Environmental Planning and Assessment Act 1979 for a breach of an approval condition, or under the Protection of the Environment Operations Act 1997, if its employees, agents or sub-contractors allow sediment, including soil, excavated material, building materials, or other materials to be pumped, drained or allowed to flow to the street, stormwater pipes or waterways. The Applicant shall ensure that its employees, agents or sub-contractors understand and maintain sediment control measures.

96. Owners/Applicants/Builders and demolishers are required to confine access to building and demolition sites to no more than two 3m driveways, and provide a footpath protection pad over Council’s footpath at these points (see attached detail). Within the site, provision of a minimum of 100mm coarse crushed rock is to be provided for a minimum length of 2 metres to remove mud from the tyres of construction vehicles.

An all weather drive system or a vehicle wheel wash, cattle grid, wheel shaker or other appropriate device, shall be installed prior to commencement of any site works or activities, to prevent mud and dirt leaving the site and being deposited on the street. Vehicular access is to be controlled so as to prevent tracking of sediment onto adjoining roadways, particularly during wet weather or when the site is muddy. Where any sediment is deposited on roadways it is to be removed by means other than washing and disposed of appropriately.

In addition builders / demolishers are required to erect a 1.5m high fence along the whole of the street alignment other than at the two openings. Such protection work, including fences, is to be constructed, positioned and maintained in a safe condition to the satisfaction of the Principal Certifying Authority, prior to the demolition of the existing structures and commencement of building operations.

97. Council’s warning sign for soil and water management must be displayed on the most prominent point on the building site, visible to both the street and site workers. The sign must be displayed throughout construction. A copy of the sign is available from Council.

98. No other trees located within the site, adjoining properties or Council’s nature strip shall be removed or pruned without the prior written consent of Council in the form of a Permit issued under Council’s Tree Preservation Order.

99. Trees located within adjoining properties or Council’s nature strip shall not be removed or pruned without the written consent of Council in the form of a Permit issued under Council’s Tree Preservation Order.

PRIOR TO ISSUE OF OCCUPATION CERTIFICATE OR COMMENCEMNET OF USE
THE FOLLOWING CONDITIONS MUST BE COMPLIED WITH PRIOR TO ISSUE OF THE OCCUPATION CERTIFICATE OR COMMENCEMENT OF USE.

100. An Occupation Certificate shall be obtained in relation to the approved works prior to any use or occupation of the building.

101. Appropriate signage and tactile information indicating accessible facilities shall be provided at the main entrance directory, or wherever directional signage such as lifts or building directories or information is provided to those buildings where access and facilities for people with disabilities has been provided. Such signage shall have regard to the provisions of AS1428.1 and AS1428.2.

A. A sign shall be erected on the wall immediately adjacent to the lift at the rooftop in words to the following effect: "The use of this rooftop area shall be limited to a maximum of 50 persons at any one time." The specification of the size, colour and font of the sign is to be to the satisfaction of the Principal Certifying Authority.

102. Tactile differentiation on floor surfaces indicating change of gradient shall be provided to those buildings where access and facilities for people with disabilities has been provided. This includes the external parts of the building, eg. access walkways and ramps. Such differentiation shall have regard to the provisions of AS1428.4.

103. Where Council's park/reserve is damaged as a result of building work or vehicular building traffic, this area shall be restored by Council at the applicant's expense. Repairs shall be completed prior to the issue of the Occupation Certificate.

104. All excess excavated material, demolition material, vegetative matter and builder’s rubbish shall be removed to the Waste Disposal Depot or the Regional Tip prior to final inspection.

Note: Burning on site is prohibited.

105. The approved recommendations from the Flood Management Report shall be implemented prior to occupation.

106. All landscape works are to be carried out in accordance with the approved landscape plans. These are following plans by Zenith Landscape Designs:

Landscape Layout & Surfaces – Ground Floor
Planting Plan - Ground Floor
Landscape Layout & Services Plan – Ground Floor
Landscape Plan - First Floor
The landscaping is to be maintained to the approved standard at all times.

107. All works within the road reserve, which are subject to approval pursuant to Section 138 of the Roads Act 1993, shall be completed and accepted by council.

108. Where an electricity substation is required by Energy Australia, a final film survey plan shall be endorsed with an area having the required dimensions as agreed with Energy Australia over the location of the proposed electricity distribution substation site. The substation must be located within the boundary of the development site, or within the building, subject to compliance with the BCA. The substation site shall be dedicated to Council as public roadway, or as otherwise agreed with Energy Australia. Energy Australia’s requirements shall be met prior to release of the issue of the Occupation Certificate.

109. Prior to occupation, a Management Plan shall be prepared addressing all conditions of consent relevant to the amenity of the surrounding properties. The Management Plan shall be available to residents and staff of the centre. The Management Plan shall address (but not be limited to) the following:

110. Prior to the issue of the Occupation Certificate the entry and exit driveway shall be clearly signposted with “Entry”, “No Entry”, “Exit” and “No Exit” signs to regulate the movement of traffic entering and exiting the development.

111. Vehicles shall enter and exit the site in a forward direction at all times. A plaque with minimum dimensions 300mm x 200mm shall be permanently fixed to the inside skin of the front fence, or where there is no front fence a prominent place approved by the Principal Certifying Authority, stating the following: “Vehicle shall enter and exit the site in a forward direction at all times”.

112. Prior to completion of the building works, a full width vehicular entry is to be constructed to service the property. Any obsolete vehicular entries are to be removed and reconstructed with kerb and gutter. This work may be done using either a Council quote or a private contractor. There are specific requirements for approval of private contractors.

113. The width of the driveways shall be in accordance with the approved plans listed in condition 2.

114. Twelve off-street car spaces and one loading bay shall be provided in accordance with the submitted plan and shall be sealed and linemarked to Council's satisfaction. The pavement of all car parking spaces, manoeuvring areas and internal driveways shall comply with Australian Standard AS3727 – Guide to Residential Pavements.

115. A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water Corporation.

Application must be made through an authorised Water Servicing Coordinator. Please refer to the Building Developing and Plumbing section of the web site then refer to "Water Servicing Coordinator" under "Developing Your Land" or telephone 13 20 92 for assistance.

Following application a "Notice of Requirements" will advise of water and sewer infrastructure to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer infrastructure can be time consuming and may impact on other services and building, driveway or landscape design.

The Section 73 Certificate must be submitted to the Principal Certifying Authority prior to occupation of the development.

116. Prior to occupation, a registered surveyor shall certify that the driveway(s) over the footpath and within the property have been constructed in accordance with the approved driveway profile(s). The certification shall be based on a survey of the completed works. A copy of the certificate and a works-as-executed driveway profile shall be provided to Council if Council is not the Principal Certifying Authority.

Where the installation of electricity conduits is required in the footway, the builder shall install the conduits within the footway across the frontage/s of the development site, to EnergyAustralia’s specifications. EnergyAustralia will supply the conduits at no charge. A Road Opening Permit must be obtained from Council prior to the installation of the conduits. The builder is responsible for compaction of the trench and restoration of the footway in accordance with Council direction. A Compliance Certificate from Energy Australia shall be obtained prior to the issue of the Occupation Certificate.

118. A certificate is to be provided to Council that all wet areas have been effectively waterproofed (prior to tiling) in accordance with AS3740 and the product manufacturer's recommendations.

119. A Landscape Architect shall provide a report to the certifying authority (with a copy provided to Council, if Council is not the principal certifying authority) stating that the landscape works have been carried out in accordance with the approved plans and documentation.

120. Prior to occupation or use of the premises, a qualified mechanical engineer shall certify that the mechanical ventilation/air conditioning system complies in all respects with the requirements of Australian Standard 1668, Part 1 & 2.

121. On completion of the installation of the mechanical ventilation systems and prior to the issue of the Occupation Certificate, a certificate of completion and performance from the design engineer shall be submitted to Council certifying that the system has been installed, inspected, commissioned, tested and performs in accordance with Australian Standards AS1668.

122. Prior to the issue of the final Occupation Certificate, a qualified acoustical engineer shall certify that the building complies in all respects with the criteria given in the NSW industrial Noise Policy 2000.

123. Prior to occupation, a chartered professional engineer shall certify that the tanking and waterproofing has been constructed in accordance with the approved design and specification. A copy shall be provided to Council if council is not the Principal Certifying Authority.

124. A certificate from a Registered Surveyor shall be provided to the Principal Certifying Authority (PCA) certifying that the habitable floor level is constructed a minimum of 500mm above the 1% Annual Exceedance Probability (A.E.P) Flood Level. A copy of the certificate shall be provided to Council where Council is not the Principal Certifying Authority.

125. Prior to occupation a Chartered Professional Engineer shall certify that the stormwater system has been constructed in accordance with the approved plans and as required by Council’s DCP 78 - Stormwater Management. The certificate shall be in the form specified in DCP 78 and include an evaluation of the completed drainage works. A works-as-executed drainage plan shall be prepared by a registered surveyor based on a survey of the completed works. A copy of the certificate and works-as-executed plan(s) shall be supplied to the Principal Certifying Authority. A copy shall be provided to Council if Council is not the Principal Certifying Authority.

126. All absorption trenches must be inspected, and a compliance certificate under Part 4A of the EP&A Act issued prior to back filling and proceeding to subsequent stages of construction. Copies of the certificate are to be maintained by the principal certifying authority and be made available to Council officers upon request.

127. The premises shall be registered with the NSW Food Authority by the proprietor of the food business by completing the registration form available online at and providing documentary evidence to the Principal Certifying Authority of the completion of this notification with the Food Authority.

128. The underground garage shall be floodproofed to a minimum of 500mm above the 1% Annual Exceedance Probability flood level. The levels shall be certified by a registered surveyor prior to construction of the driveway or other openings.

129. The development shall comply with Council’s DCP 66 – Management of Flood Risk, and the Planning Considerations and Development Controls listed in the Flood Advice letter issued by Council on 21 February 2009.

130. The maximesh screens and removable geotextile are to be installed in the absorption system prior to connection of the downpipes to ensure the effective performance of the system during construction and the long term viability of the system.

131. A positive covenant pursuant to the Conveyancing Act 1919 shall be created on the title of the lots that contain the stormwater retention/detention facility to provide for the maintenance of the retention/detention facility.

132. The pump system, including all associated electrical and control systems, shall be tested and inspected by a suitably qualified and experienced person. Records of testing shall be retained and provided to the certifying hydraulic engineer and/or PCA upon request.

133. The drainage system shall be constructed in accordance with the approved drainage plans and any amendments in red. All stormwater drainage plumbing work shall comply with the NSW Code of Practice: Plumbing and Drainage and Australian Standard AS3500.

134. A silt/litter arrestor pit as detailed in Council’s DCP 78 – Stormwater Management shall be provided prior to discharge of stormwater from the site.

135. The outside finished ground level shall be constructed a minimum of 200mm below the habitable floor level for the whole building perimeter.

136. The owner of the premises shall inform Sydney Water that a Rainwater tank has been installed in accordance with applicable requirements of Sydney Water.

137. The overflow from the rainwater tank shall be directed to the storm water system.

138. All plumbing work proposed for the installation and reuse of rainwater shall comply with the NSW Code of Practice: Plumbing and Drainage and be installed in accordance with Sydney Water “Guidelines for rainwater tanks on residential properties”.

139. A first flush device shall be installed to reduce the amount of dust, bird faeces, leaves and other matter entering the rainwater tank.

ROADS ACT

140. Construction related activities must not take place on the roadway without Council approval.

Short-term activities (including operating plant, materials delivery) that reduce parking spaces, affect access to a particular route or prevent or restrict the passage of vehicles along the road must not occur without a valid Temporary Roadside Closure Permit.

Activities involving occupation of the parking lane for durations longer than allowed under a Temporary Roadside Closure Permit require a Construction Zone Permit and must not occur prior to the erection of Construction Zone signs by the RTA.

Permit application forms should be lodged at Council's Customer Service Centre allowing sufficient time for evaluation. An information package is available on request.

141. The following works will be required to be undertaken in the road reserve at the applicant's expense:

construction of a concrete footpath along the frontage of the development site, and construction of a concrete footpath connecting the site to the existing concrete footpath in Fontainebleau Street;
construction of new concrete vehicular entrances;
removal of the existing concrete vehicular entrance/s, and/or kerb laybacks which will no longer be required;
reconstruction of selected areas of the existing concrete Footpath/vehicular entrances and/or kerb and gutter.

142. All footpath, or road and drainage modification and/or improvement works to be undertaken in the road reserve shall be undertaken by Council, or by a Private Licensed Contractor subject to the submission and approval of a Private Contractor Permit, together with payment of all inspection fees. An estimate of the cost to have these works constructed by Council may be obtained by contacting Council on 9562 1670. The cost of conducting these works will be deducted from the Footpath Reserve Restoration Deposit, or if this is insufficient the balance of the cost will be due for payment to Council upon completion of the work.

143. Any driveway works to be undertaken in the footpath reserve by a private contractor requires an “Application for Consideration by a Private Contractor” to be submitted to Council together with payment of the application fee. Works within the footpath reserve must not start until the application has been approved by Council.

144. Following completion of concrete works in the footpath reserve area, the balance of the area between the fence and the kerb over the full frontage of the proposed development shall be turfed with either buffalo or couch (not kikuyu) or landscaped. If landscaping is proposed rather than turfing, details shall be submitted to the Property and Community Services Department for approval.

(a) You are advised to consult with your utility providers (i.e. Energy Aust, Telstra etc) in order to fully understand their requirements before commencement of any work.

(b) If Council is appointed as the Principal Certifying Authority (PCA), a fee shall be paid before a Construction Certificate is issued. If payment is made after the end of the financial year, the amount shall be adjusted in accordance with Council’s adopted fees and charges. The fees charged encompass all matters related to ensuring that the proposed development is carried out in accordance with the approved plans and any post inspection issues that may arise.
(c) If Council is the Principal Certifying Authority for the development, a drainage inspection fee of $274.00 shall be paid prior to the issue of the Construction Certificate. If payment is made after the end of the financial year, the amount shall be adjusted in accordance with Council’s adopted fees and charges.

NB: This fee does not include a confined space entry into the on-site detention tank. Where a confined space entry is required, an additional fee of $401.00 is payable. A confined space entry will be required where:

a) Information provided in the works-as-executed drawing and engineering certification is inconclusive as to the compliance of the system with the approved plans; and/or

b) Visual inspection from outside the tank is inconclusive as to the compliance of the system with the approved plans.

Occupational Health and Safety Act 2000
Occupational Health and Safety Regulation 2001
Code of Practice for the Safe Removal of Asbestos [NOHSC: 2002 (2005)]
Code of Practice for the Management and Control of Asbestos in Workplaces [NOHSC: 2018 (2005)]
Protection of the Environment Operations (Waste) Regulation 2005
All work procedures shall be devised to minimise the release of dust and fibres. A checklist of safety precautions when working with asbestos is available in Health & Safety Guidelines prepared by the WorkCover Authority of NSW. Collection, storage and transportation is subject to the Protection of the Environment Operations (Waste) Regulation 2005.

Occupational Health and Safety Act 2000
Occupational Health and Safety Regulation 2001
Protection of the Environment Operations (Waste) Regulation 2005.

choosing quiet equipment
choosing alternatives to noisy activities
relocating noise sources away from affected neighbours
educating staff and contractors about quiet work practices
informing neighbours of potentially noise activities in advance
equipment, such as de-watering pumps, that are needed to operate on any evening or night between the hours of 8 p.m. and 7 a.m. or on any Sunday or Public Holiday, shall not cause a noise nuisance to neighbours of adjoining or nearby residences. Where the emitted noise exceeds 5 dB(A) [LAeq(15m)] above the background sound level [LA90] at the most affected point on the nearest residential boundary at any time previously stated, the equipment shall be acoustically insulated, isolated or otherwise enclosed so as to achieve the sound level objective.

08/02/2011 - Added legal representation to coversheet - Paragraph(s) NA

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Citations

Nanevski Developments Pty Limited v Rockdale City Council [2010] NSWLEC 1369

Cases Citing This Decision

0

Cases Cited

2

Statutory Material Cited

4

Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46

Wehbe v Pittwater Council [2007] NSWLEC 827

CITATION:	Nanevski Developments Pty Limited v Rockdale City Council [2010] NSWLEC 1369 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT: Nanevski Developments RESPONDENT: Rockdale City Council
FILE NUMBER(S):	10629 of 2010
CORAM:	Murrell C
KEY ISSUES:	:- Development application for aged care facility under State Policy. SEPP 1 variations to height, storeys, and 25% single storey rear component Adverse impacts on adjoining residential properties – privacy; solar access; bulk and height; traffic and parking; and impact on streetscape
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 Rockdale Local Environmental Plan 2000 Development Control Plan No. 40 – housing for older people or people with a disability
CASES CITED:	Wehbe v Pittwater [2007] NSWLEC 827 Winten Property Group v North Sydney Council [2001] NSWLEC 46
TEXTS CITED:	Building Code of Australia
DATES OF HEARING:	12 & 13 October, 3 & 6 December 2010
EX TEMPORE JUDGMENT DATE:	6 December 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr Tomasetti SC SOLICITORS Mr D Briggs DG Briggs & Associates RESPONDENT Mr J Cole SOLICITORS HWL Ebsworth

Drawing no.	Name	Revision	Date
DA 00	Proposed Area Calculations	B	27.10.10
DA 01	Proposed Basement Floor Plan	C	27.10.10
DA 02	Proposed Ground Floor Plan	B	27.10.10
DA 03	Proposed Level 1 Floor Plan	B	27.10.10
DA 04	Proposed Level 2 Floor Plan	B	27.10.10
DA 05	Proposed Roof Plan	B	27.10.10
DA 06	Proposed Elevations (East & North)	B	27.10.10
DA 07	Proposed Elevations(West & South)	B	27.10.10
DA 08	Proposed Sections(AA & BB & CC)	B	27.10.10